Taking a Break from Self-Defense

Abstract

Legal theory has failed to acknowledge how central a concept self-defense is for the construction of American identities. Across demographic and ideological divides and throughout American history, self-defense has functioned as a mechanism to assert self-worth. This Article argues that this is an insidious baggage for self-defense to carry and that we would be better to jettison rather than claim it. The argument is grounded in an analysis of various manifestations of the American self-defensive culture. In law, these include developments in penal codes, constitutional criminal law, gun laws, procedural rules, the law of police, and prison law and policy. This compound proactively incites persons under all colors of law to seize opportunities to exercise self-defense, assigns virtuousness to self-defensive achievements, and augments their effectiveness. Thus, the contemporary ubiquity of self-defense serves to articulate, distribute, and breed aggression, re-legitimizing violence through the back door. Under this light, the Article suggests a moratorium on the idea that self-defense is a justification for violence.

Analytic criminal jurisprudence generally takes justification to be a category that applies across time and place. Although all the elements of a crime are satisfied, when a justification defense applies the act is morally permissible and hence exoneration is due. But the idea that self-defense justifies violence is culturally, historically, and politically loaded. These conditions ought to inform its jurisprudential analysis. The Article suggests incorporating a cultural receptivity criterion into the justification-excuse calculus, making meaningful the fact that the criminal law is public law. As a public institution, self-defense is detrimental to material welfare, equality, democracy, and ethics of cooperation and care, such that its social roles corrupt whatever justifiable moral core it ideally has. We should not want to give individual self-defenders the powers that justifications confer, nor vindicate the values that justificatory self-defense stands for or accept the socio-political conditions that self-defense laws create or perpetuate. Hence, we can hold that the functions that self-defense regimes serve in contemporary society render them unjustifiable, while remaining agnostic on the question of whether morality permits self-defense.

The Article proposes to understand self-defense as an excuse, which negates the doer’s punishability but not the unlawfulness of the act. Self-defenders would still be relieved of criminal liability, but for reasons anchored in social conditions and public values rather than private morality. Instead of celebrating self-defense as a vindication of natural justice, the normative question ought to shift to the communal failures that give rise to violence and that make it seem inevitable.

Keywords: Criminal Law, Criminal Jurisprudence, Law and Culture, Self-Defense, Justification and Excuse, Violence, Nonviolence, American Exceptionalism